Research question: Eviction after expiration of lease

Manujendra Dutt vs Purendu Prosad Roy Chowdhury & Ors on 22 September, 1966 {1967
SCR (1) 475}

The Thika Tenancy Act does not confer any additional rights on a landlord but on the con-
trary imposes certain restrictions on his right to evict a tenant under the general law or under
the contract of lease. The Thika Act like other Rent Acts enacted in various States imposes
certain further restrictions on the right of the landlord to evict his tenant and lays down that
the status of irremovability of a tenant cannot be got rid of except on specified grounds set
out in section 3. The right of the appellant therefore to have a notice as provided for by the
proviso to clause 7 of the Lease was not in any manner affected by section 3 of the Thika Act.
The effect of the non-obstante clause was that even where a landlord has duly terminated the
contractual tenancy or is otherwise entitled to evict his tenant he would still be entitled to a
decree for eviction provided that his claim for possession falls under any one or more of or
the grounds in section 3. Before therefore the respondents could be said to be entitled to a
decree for eviction they had first to give six months notice as required by the proviso to
clause 7 of the lease and such notice not having been admittedly given their suit for eviction
could not succeed. In our view the construction placed by the High Court on section 3 was
not correct and the High Court was wrong in holding that the words "notwithstanding
anything contained in any other law for the time being in force or in any contract" absolved
the respondents from their obligation to give the six months notice to the appellant before
claiming from him vacant possession of the land in question.

In M/s. Raptakos Brett & Co. Ltd. v. Ganesh Property, [1998] 7 SCC 184 the Supreme Court
held that, ‘when a lease comes to an end by efflux of time, or by notice of termination, or if
there be a breach and the lessee's rights are forfeited, the lessee becomes a tenant at
sufferance, and it becomes the duty of the lessee under Section 108(q) of the Transfer of
Property Act to restore possession to the lessor forthwith.’ Having said so, Section 116 of the
Act states that, continuance of possession of the property by the lessee after expiration of the
term of the lease, coupled with acceptance of rent by the lessor or implied assent provided by
the lessor towards the lessee continuing to remain in possession of the property, in the
absence of an agreement to the contrary, brings into existence a statutory tenancy from month
to month (in case of an immovable property) as contemplated under Section 116 of the Act.
The said concept is more popularly recognized as ‘Tenancy by Holding Over’.
Notwithstanding the concept of ‘Tenancy by Holding Over’, in the event a lessee continues to
retain possession of a property, without the consent (whether implied or explicit) from the
lessor, such retention of possession is unlawful, and the concept is recognized as ‘Tenancy at
Sufferance’.

The Supreme Court of India in the matter of R.V. Bhupal Prasad vs State Of Andhra Pradesh
& Ors3 1996 AIR 140

explained the concept of Tenant at Sufferance as follows, ‘tenant at sufferance is one who
comes into possession of land by lawful title, but who holds it wrongly after the termination
of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one
who wrongfully continues in possession after the extinction of a lawful title. There is little
difference between him and a trespasser. In Mulla's Transfer of Property Act (7th Edn.) at
page 633, the position of tenancy at sufferance has been stated thus: A tenancy at sufferance
is merely a fiction to avoid continuance in possession operating as a trespass. It has been
described as the least and lowest interest which can subsist in reality. It, therefore, cannot be
created by contract and arises only by implication of law when a person who has been in
possession under a lawful title continues in possession after that title has been determined,
without the consent of the person entitled. A tenancy at sufferance does not create the
relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant
holding over thus: The act of holding over after the expiration of the term does not
necessarily create a tenancy of any kind. If the lessee remaining in possession after the
determination of the term, the common law rule is that he is a tenant on sufferance. 'The
expression "holding over" is used in the sense of retaining possession. A distinction should be
drawn between a tenant continuing in possession after the determination of the lease, without
the consent of the landlord and tenant doing so with the landlord's consent. The former is
called a tenant by sufferance in the language of the English Law and the latter class of tenants
is called a tenant holding over or a tenant at will. The lessee holding over with the consent of
the lessor is in a better position than a mere tenant at sufferance. The tenancy on sufferance is
converted into a tenancy at will by the assent of the landlord, but the relationship of the
landlord and tenant is not established until the rent was paid and accepted. The assent of the
landlord to the continuance of the tenancy after the determination of the tenancy would create
a new tenancy. The possession of a tenant who has ceased to be a tenant is protected by law.
Although he may not have a right to continue in possession after the termination of the
tenancy, his possession is juridical.’

Justice Bhagwati in the matter of Nanalal Girdharlal v. Gulamnabi Jamalbhai Motorwala

AIR 1973 Guj 131 had explained the concept of a tenant remaining in possession of the
property after determination of the lease in India. He had said,

‘……but we do not think that a tenant in possession of the property after

determination of the lease can be equated to a trespasser. The law in India on this is
different from that in England. When a tenant remains in possession of the property-
after determination of the lease in India, he undoubtedly becomes a tenant at
sufferance but if the landlord accepts rent from him or otherwise assents to his
continuing in possession, the tenancy is, in the absence of an agreement to the
contrary, renewed from year-to-year or month-to-month according the purpose for
which the property is leased vide Section 116 of the Transfer of Property Act. Even if
the landlord does not assent to the tenant continuing in possession of the property
and the tenancy is not renewed as provided in Section 116 of the Transfer of Property
Act, the tenant does not become a trespasser. The tenant has juridical possession of
the property and no one can deprive him of such juridical possession except in due
course of law. The tenant can as pointed out by Mr. Justice Batchelor in Rudrappa v.
Narsingrao, (1905) LR 29 Bom. 213 "recover as against a third party who unlawfully
dispossesses him." Even the landlord cannot suo motu dispossess a tenant without his
 consent and if he does so, the tenant would be entitled to recover possession from him
by resorting to the remedy provided under Section 915 of the Specific Relief Act. The
possession of an erstwhile tenant remaining in possession of the property after
determination of the lease is thus fundamentally different from that of a trespasser.
Whereas a trespasser is never in juridical possession of the property, and he can
always be thrown out if the landlord can do so peaceably, the possession of an
erstwhile tenant is juridical and he is a protected from dispossession otherwise than
in due course of law. Therefore, as far as the Indian Law is concerned, a tenant
remaining in possession of the property after determination of the lease can never
become a trespasser. This view is supported by at least two decisions of the Bombay
High Court. One is the decision of Jenkins, C.J. and Batchelor J. in (1905) ILR29
Bom. 213 (supra) and the other is the decision of Chagla C.J. and Dixit J. in K.K.
Verma v. Union of India.’

The Supreme Court of India, in the matter of Raptakos Brett And Co. Ltd v. Ganesh Property
[1998] 7 SCC 184, said that, ‘in view of the aforesaid settled legal position, it must be held
that on the expiry of the period of lease, the erstwhile lessee continues in possession because
of the law of the land, namely that the original landlord cannot physically throw out such an
erstwhile tenant by force. He must get his claim for possession adjudicated by a competent
court as per the relevant provisions of law. The status of an erstwhile tenant has to be treated
as a tenant at sufferance akin to a trespasser having no independent right to continue in
possession.’

Thus, on a conjoint review of the Act and several judgments, we may conclude the
following –

(a) The Act provides that upon determination of a lease, the lessee is bound to
handover possession of the premises to the lessor;

(b) In the event the lessee continues to retain possession of the premises after
determination of the lease, the lessee may either become a ‘Tenant at Will/ Holding
Over’ or a ‘Tenant at Sufferance’, depending upon having the consent (implied/
express) of the lessor to retain such possession;

(c) However, in no event will such a lessee/ tenant be classified as a ‘trespasser’, as a

tenant/ lessee has juridical possession over the property and the said tenant/ lessee
cannot be deprived of such juridical possession except in due course of law.

The Supreme Court of India, in T. Arivandandam v. T.V. Satyapal, 1977 SCC (4) 467 has
held that, ‘and, if clear drafting has created the illusion of a cause of action, nip in the bud at
the first hearing by examining the party searchingly under Order X, CPC. An activist Judge is
the answer to irresponsible law suits. The Trial Courts would insist imperatively on
examining the party at the first hearing so that bogus litigation can be shot down at the
earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI), could
be called in aid, be it the pleading by a plaintiff or that by a defendant.’ The dismissal of a
Suit for Ejectment does not, and can by no stretch of imagination, extinguish the,
reversionary rights (ownership) of the lessor and confer the same upon the lessee so as to
make him an absolute owner. Similarly, it cannot convert a month-to-month lease into one in
perpetuity. At the very best it operates as 'waiver' under Section 113 of the Act or an 'assent'
of the lessor within the meaning of Section 116 of the Act, and is therefore renewed from
year-to-year, or from month-to month, according to the purpose for which the property is
leased. The lessee remains a lessee. He continues to be liable for the rent that accrues. He
does not become the owner. His rights consequent to the dismissal would thenceforth be that
not of a tenant at sufferance but of one from month-to month and terminable at any future
date as provided by Section 106 of the Act.

Hon'ble Apex Court in Dhannalal vs Kalawatibai And Ors decided on 8 July, 2002 in Appeal
(civil) no. 3652 of 2002 wherein it was held as under:

"It is well settled by at least three decisions of this Court, namely, Sri Ram Pasricha v.
Jagannath and Ors., [1976] 4 SCC 184, Kanta Gael v. B.P. Pathan and Ors ., [1977] 2
SCC 814 and Pal Singh v. Sunder Singh (dead) by Lrs. and Ors., [1989] 1 SCC 444
that one of the coowners can alone and in his own right file a suit for ejectment of
tenant and it is no defence open to tenant to question the maintainability of the suit on
the ground that other coowners were not joined as parties to the suit. When the
property forming subject matter of eviction proceedings is owned by several owners,
every coowner owns every part and every bit of the joint property along with others
and it cannot be said that he is only a part owner or a fractional owner of the property
so long as the property has not been partitioned. He can alone maintain a suit for
eviction of tenant without joining the other co owners if such other coowners do not
object."

In Joginder Pal vs. Naval Kishore Behal [2002 (5) SCC 3971], the Court after noticing
several judicial precedents on the subject observed as under:

"The rent control legislations are heavily loaded in favour of the tenants treating them as
weaker sections of the society requiring legislative protection against exploitation and
unscrupulous devices of greedy landlords. The legislative intent has to be respected by the
courts while interpreting the laws. But it is being uncharitable to legislatures if they are
attributed with an intention that they lean only in favour of the tenants and while being fair
to the tenants, go to the extent of being unfair to the landlords. The legislature is fair to the
tenants and to the landlords both. The courts have to adopt a reasonable and balanced
approach while interpreting rent control legislations starting with an assumption that an
equal treatment has been meted out to both the sections of the society. In spite of the overall
balance tilting in favour of the tenants, while interpreting such of the provisions as take care
of the interest of the landlord the court should not hesitate in leaning in favour of the
landlords. Such provisions are engrafted in rent control legislations to take care of those
situations where the landlords too are weak and feeble and feel humble."